P L D 1959 (W (PLP)

Sher Afzal Khan brought a suit for the possession of 21 / 128th share in agricultural land and some houses which belonged to Sohbat Khan and also for rendition of account of income from that property and payment out of it of his share to him. The suit was instituted on 3‑2‑1943. The claim was preferred on the ground that Mst. Umatuz‑Zuhara daughter of Sohbat Khan was his wife and on Sohbat Khan's death in 1914 she was entitled to 7/24th share in his property. She also died in 1938 and on her death he, as her heir, became entitled to 1/3rd of her estate. His share according to the rule of Muhammadan came to 21/128 part of Sohbat Khan's property. On 15‑7‑1949 a decree for the possession of 7/96th share of Sohbat Khan's property was passed in his favour. The share of the plaintiff was reduced by the trial Court on the ground that Mst. Umatuz Zuhara wife of Sher Afzal Khan plaintiff had made a will of 1/3rd of. her estate in favour of Col. Kiramatullah Khan (son of her sister) and the share of her husband was diminished by it. Against that decree appeal was preferred by Khan Sher Afzal Khan who had challenged the validity of the will in the original Court. A Bench of this Court by its judgment dated 6‑1‑1958. rejected the will and restored to Sher Afzal Khan the share which he had originally claimed i.e. 21/128 of Sohbat Khan's property. On 4‑4‑1956, Col. Kiramatullah Khan applied to this Court for certificate to prefer an appeal against the judgment of the Bench to the Supreme Court. That application is awaiting decision. An application has also been presented by Col. Kiramatullah Khan asking for the stay of the execution pro ceedings in the lower Court. That application has been opposed by Khan Sher Afzal Khan and this order deals with that matter. The provision of law which is applicable to stay of execution proceedings, on admission of appeals to the Supreme Court, lies in Order XLV, rule 13 (2) (c) of the Code of Civil . Procedure. That provision permits the High Court to order the stay of execution proceedings when a certificate for the admission of appeal to the Supreme Court has been granted to the appellant. This case has not reached that stage yet and that rule of law has no application to this case. But it has been argued by Col. Kiramatullah Khan's learned counsel, on the basis of judicial decisions, that the Court can, in the exercise of its inherent powers under section 151, Civil Procedure Code, order the stay of execution proceedings even if an application for stay is made before the stage contemplated by Order XLV, rule 13 has been reached. 'In support of this proposition he relies on Narumal v. Jugatmal (A I R 1925 Sind 216); Jewan Ram Gangaram & Co. v. Commissioner for Port of Calcutta (A I R 1939 Cal. 308) ; 19 Bom. 10 and Ramanathan v. Viswanathan (A I R 1039 Mad. 50). These are no doubt authorities for the proposition that in an urgent case, where there is otherwise a fear of the ends of justice being defeated, execution proceedings may be stayed under section 151, C. P. C. even if a certificate for appeal to the Privy Council has not been granted and the applicant is not within the terms of Order XLV, rule

13. On the other side it has been contended that the view of law is that even if a certificate is granted, execution should not be stayed and the decree should be allowed to run its course. Execution proceedings should be intercepted only if the circum stances of the case create an apprehension that the continuance of the execution proceedings on the satisfaction of the decree will occasion a substantial loss to the judgment‑debtor in the event of acceptance of his appeal. It is only to prevent substantial loss to arise to the judgment‑debtor that provision for stay of execution proceedings has been made in Order XLI, rule 5 and Order XLV, r.

13. But when a suppliant for stay proceedings is not within the terms of law a stronger case for interference under the cover of the inherent powers provided in section 151, Civil Procedure Code should be made out. In that case interference would be justified only to prevent an irreparable injury which the execution of the decree would inflict on the judgment holder in the event of his emerging successful in the appeal. For this view there is a support in 15 I C 187 and in Mukerji Nath Das v. Saroj Kumar Das (A I R 1934 Cal. 823). The trend of law is that even if the applicant is within the terms of Order XLV, rule 13, execution proceedings should not be stayed unless the Court is satisfied that a substantial loss to judgment‑debtor would be avoided, by the issuance of stay order. It requires a stronger case to invoke the extraordinary powers of the Court under section 151, C. P. C. A decree is a pronouncement of a Court of law in support of the decree holder's right in a cause. The ends of justice demand that when a decree is passed in favour of a person it should be carried into execution to put decree‑holder in possession of his right so that he may be in a position to reap the fruits of his success and labour. The course of a decree should be intercepted only if the Court is satisfied that the ends of justice would be defeated if it is allowed to take effect. The ends of justice would stand defeated if the Court comes to the conclusion that in the event of the appeal being successful the loss arising to the appellant from execution of the decree would be either beyond repair, or the decree holder would get into a position from which, in the event of the decision in appeal being against him, it will not be possible to dislodge him by any device. I am of opinion that the facts of this case do not conform to the test laid down in the preceding paragraph and do not attract interference under the extraordinary powers of the Court lying in section 151, Civil Procedure Code. The decree is one for joint possession of a specified share and for rendition of account and calculation of the amount to which the decree‑holder may be found to be entitled. If the applicant succeeds in his appeal decree‑holder's share in the joint property will be reduced and the amount due to him will be diminished, and if any' payment is made to him as his share of income that will become recoverable from him. If such are the conditions of the case then there is no apprehension of any irreparable loss arising to the appellant. The case would have been different if the decree had been for actual physical possession of the decree holder's share by partition. I am of opinion that at this stage when the applicant is not within the terms of Order XLV, rule 13 the aid of extraordinary powers of the Court provided in section 151 of the Civil Procedure Code, in prevention of judicial casualties cannot be invoked in his favour. To attract the application of that section a case of irreparable loss should have been brought 'to light. These provisions can be attracted only if the case satisfies the tests laid down in that section, and the circumstances of the case disclose that the execution of the decree would inflict an injury upon the appellant which, in the event of his success in appeal, would not be curable by any easy device and ends of justice would thereby be defeated. No such circumstances have been disclosed in this case. The question whether under the provisions of Order XLV, rule 13 he would be entitled to a stay order is, at this stage, premature. That question can be con sidered after a certificate of admission is granted to him. This stay application is rejected. Parties will bear their own costs. A. H. Application rejected.